Citation Nr: 9932896
Decision Date: 11/22/99 Archive Date: 12/01/99
DOCKET NO. 94-07 214 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for elevated
cholesterol/hypercholesterolemia.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J.M. Daley, Associate Counsel
INTRODUCTION
The veteran had active service from January 1965 to January
1968, and from April 1968 to July 1991.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from the Department of Veterans Affairs (VA)
Regional Office (RO), located in Houston, Texas. By way of
history, the veteran perfected appeals with respect to the
RO's August 1992 denial of service connection for elevated
cholesterol, a low back disorder and carpal tunnel syndrome
of the left hand. However, in a decision dated in May 1997,
the Board granted service connection for carpal tunnel
syndrome of the left hand, thus ending the appeal on that
matter. See 38 U.S.C.A. § 7104(b) (West 1991). The RO
implemented that decision in an August 1998 rating action,
assigning a 10 percent evaluation for such, effective August
1, 1991. Moreover, the RO, in a September 1999 rating
action, established service connection and assigned a 10
percent evaluation for lumbar strain, effective August 1,
1991. A review of the record does not reflect that the
veteran has expressed disagreement with the percentages or
effective dates assigned to such disabilities. In fact, with
respect to the back, he has specifically indicated that he is
in agreement with the 10 percent evaluation assigned, and its
effective date. Therefore, the RO's August 1998 and
September 1999 rating decisions represented full grants of
the benefit sought, i.e. service connection relevant to left
hand carpal tunnel syndrome and lumbar strain. As the
veteran did not express disagreement with the "down-stream"
issues of effective date or the percentage evaluation
assigned, those matters are not before the Board. See
Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); see also
Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).
The Board also notes that all actions requested in its May
1997 remand have been accomplished, to the extent possible.
See Stegall v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. An elevated cholesterol level is a laboratory finding and
is not a disability for VA compensation purposes.
2. The record contains no competent evidence that the
veteran has a current disability resulting from elevated
cholesterol/hypercholesterolemia.
CONCLUSION OF LAW
The claim of entitlement to service connection for elevated
cholesterol/hypercholesterolemia is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Pertinent Criteria
In order to establish service connection for a claimed
disability the facts must demonstrate that a disease or
injury resulting in current disability was incurred in the
active military service or, if pre-existing active service,
was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.303 (1999).
Where a veteran served for at least 90 days during a period
of war or after December 31, 1946, and certain chronic
diseases, such as those affecting the cardiovascular system,
become manifest to a degree of 10 percent within one year
from the date of termination of such service, such diseases
shall be presumed to have been incurred in service, even
though there is no evidence of such diseases during the
period of service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West
1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Where there is a
chronic disease shown as such in service or within the
presumptive period under 38 C.F.R. § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b). To show chronic
disease in service there is required a combination of
manifestations sufficient to identify the disease entity, and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a diagnosis
including the word "chronic." When the disease identity is
established, there is no requirement of evidentiary showing
of continuity. Continuity of symptomatology is required
where the condition noted during service or in the
presumptive period is not shown to be chronic or where the
diagnosis of chronicity may be legitimately questioned.
38 C.F.R. § 3.303(b).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service and still has
such condition. Such evidence must be medical unless it
relates to a condition as to which, under the Court's case
law, lay observation is competent. If the chronicity
provision is not applicable, a claim may still be well
grounded if (1) the condition is observed during service, (2)
continuity of symptomatology is demonstrated thereafter and
(3) competent evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997);
see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where
the issue involves questions of medical diagnosis or an
opinion as to medical causation, competent medical evidence
is required).
Service connection may also be granted for a disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Factual Background
A March 1985 service medical record indicates that the
veteran's cholesterol level was elevated and that he would
not be cleared for entry into the "Over 40 program" until
internal medicine/cardiology consultation was performed;
subsequent to medical evaluation, the veteran's clearance was
granted. Service dental records dated from May 1989 to
December 1990 include note of high cholesterol, for which the
veteran was taking medication. Electrocardiogram (EKG)
conducted in June 1990 was interpreted as within normal
limits. Other service medical records reflect notations of
hyperlipidemia and include laboratory cholesterol test
results showing elevated cholesterol levels. The report of
service medical examination completed in January 1991 at
retirement notes no diagnosed disabilities, to include those
affecting the cardiovascular system, attributable to an
elevated cholesterol level.
The veteran submitted a claim for VA benefits based on
elevated cholesterol at discharge from service.
VA examination conducted in March 1992 included an
electrocardiogram showing a nodal rhythm, but otherwise
unremarkable. Chest x-ray was unremarkable. Laboratory
results indicated an elevated cholesterol level. The VA
examiner assessed hypercholesteremia and noted that the
veteran had been taking Lopid.
The RO denied service connection for elevated cholesterol in
August 1992. In his notice of disagreement, the veteran
stated that he was taking Lopid to control his cholesterol
level. In his substantive appeal the veteran indicated that
he was taking the medication in order to avoid high blood
pressure, coronary heart disease or other disability that
could result from his high cholesterol, as indicated to him
by his physicians.
The report of VA examination dated in April 1993 includes
note of increased cholesterol. VA neurologic, pulmonary and
orthopedic examinations were conducted in May 1994; the
reports of those examinations do not reflect findings or
assessments relevant to increased cholesterol levels. A VA
orthopedic examination was conducted in January 1995 and the
report does not reflect findings or assessments relevant to
increased cholesterol levels.
In a statement received in August 1995 the veteran argued
that his increased cholesterol should at least be assigned a
zero percent evaluation to recognize the fact that he
requires medication to control such.
In May 1997, the Board remanded the veteran's claim to obtain
an examination relevant to whether he has any disability
associated with increased cholesterol levels. In May 1999,
the veteran presented for a VA examination. The examiner
noted the veteran's history of abnormal EKG and elevated
cholesterol during service, for which he commenced drug
therapy with Lopid, continuing to date. The VA examiner
reviewed records and opined that the EKG in June 1990 was
essentially normal with sinus arrhythmia and that EKG in
March 1992 showed nodal rhythm but was otherwise unremarkable
and without evidence of ischemia. The veteran denied any
chest pain or shortness of breath. EKG performed in May 1999
was interpreted as showing a normal sinus rhythm with a
marked sinus arrhythmia, but stated to be otherwise normal.
The examiner commented that the sinus arrhythmia was a normal
variant of no pathologic significance. The examiner
specifically noted that the veteran had no coronary artery
disease or heart disorder and that there was no significance
of the nodal rhythm noted on the March 1992 EKG. The
examiner finally stated that currently shown EKG findings
were not the result of elevated cholesterol while on active
duty.
Analysis
The threshold question to be answered in the veteran's appeal
with respect to claims of service connection is whether he
has presented evidence of well-grounded claims. "[A] person
who submits a claim for benefits under a law administered by
the Secretary shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded."
38 U.S.C.A. § 5107(a); Carbino v. Gober, 10 Vet. App. 507
(1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A
well-grounded claim is "a plausible claim, one which is
meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the
initial burden of [section 5107(a)]." Murphy v. Derwinski,
1 Vet. App. 79, 81 (1990). In Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992), the Court held that a claim must be
accompanied by supportive evidence and that such evidence
"must 'justify a belief by a fair and impartial individual'
that the claim is plausible."
For a claim to be well grounded, there generally must be (1)
a medical diagnosis of a current disability; (2) medical or,
in certain circumstances, lay evidence of in-service
occurrence or aggravation of a disease or injury; and
(3) medical evidence of a nexus between an in-service injury
or disease and the current disability. See Anderson, supra;
Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd,
78 F.3d 604 (Fed. Cir. 1996) (table).
In any case, a claim for service-connection for a disability
must be accompanied by evidence which establishes that the
claimant currently has the claimed disability. Absent proof
of a present disability there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998);
Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer
v. Derwinski, 3 Vet. App. 223, 225 (1992) ; Rabideau v.
Derwinski, 2 Vet. App. 141, 144 (1992).
Medical evidence is required to prove the existence of a
current disability and to fulfill the nexus requirement. Lay
or medical evidence, as appropriate, may be used to
substantiate service incurrence. See Layno v. Brown, 6 Vet.
App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).
For the purposes of determining whether this claim is well-
grounded, the Board must presume the truthfulness of the
evidence, "except when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion." King v.
Brown, 5 Vet. App. 19, 21 (1993).
If a claim is not well grounded, the application for service
connection must fail, and there is no further duty to assist
the veteran in the development of his claim.
38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78
(1990).
In this case, there is no question that the veteran was found
to have elevated cholesterol levels beginning in service and
continuing to date. Nor does the Board dispute that he is
prescribed medication to control such. The most recent VA
examination documents that he continues to have
hypercholesterolemia, for which he takes Lopid. However,
governing law provides for the payment of compensation for
"disability resulting from personal injury suffered or
disease contracted in the line of duty . . . ." 38 U.S.C.A. §
1110, 1131 (West 1991). The point to be made with respect to
this case is that an elevated cholesterol level, even when
shown on a continuous basis, is a laboratory finding and as
such does not, in and of itself, constitute a disease or a
disability due to a disease or injury. The record contains
no competent medical evidence that the veteran has current
disability associated with elevated blood pressure
levels/hypercholesterolemia. The most recent examiner
specifically considered the veteran's cholesterol level as
well as other laboratory findings and concluded that there
was no evidence of cardiac or other disability resulting from
elevated cholesterol levels. Absent proof of a present
disability there can be no valid claim. See, e.g., Gilpin v.
West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104
F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski,
3 Vet. App. 223, 225 (1992) ; Rabideau v. Derwinski,
2 Vet. App. 141, 144 (1992). The record does not reflect
that the veteran possesses a recognized degree of medical
knowledge that would render him competent to provide the
requisite evidence of existing disability resulting from
hypercholesterolemia/elevated blood pressure. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Thus, his claim must be
denied. See Caluza, supra.
The Board notes the veteran's argument, offered in a
statement in support of claim received in October 1999, to
the effect that VA does in fact service connect certain
medical problems because they can lead to other conditions.
He cites the example of diabetes. However, diabetes, as
cited by the veteran, is distinguishable as it is a
recognized disease entity, in and of itself, as opposed to a
laboratory finding such as elevated cholesterol. A more
appropriate analogy would be elevated blood sugar, also a
laboratory finding. The veteran argues that elevated
cholesterol may lead to stroke or cardiovascular disease and
that the medication required to control his cholesterol
levels may cause liver damage. He particularly argues that
he should not have to pay for liver function tests and
medications required for a problem that began in service and
asked the RO if the denial indicated that he would also be
denied service connection for heart disease, a stroke or
liver disease if he developed such due to his elevated
cholesterol levels. The Board assures the veteran that
although the decision herein continues to deny service
connection for his elevated cholesterol, that if he develops
a diagnosed liver or cardiovascular disability attributed by
competent evidence to his elevated cholesterol that started
in service and/or to the medications prescribed for such, VA
will again consider his claim and determine if service
connection is warranted for such disability consistent with
all VA laws, regulations and other governing precedent.
Thus, absent evidence of a diagnosed disability, the Board
cannot further consider the veteran's claim at this time.
The Board recognizes that the Court has held that there is
some duty to assist the veteran in the completion of his
application for benefits under 38 U.S.C.A. § 5103 (West 1991
& Supp. 1998) even where his claims appear to be not well-
grounded where a veteran has identified the existence of
evidence that could plausibly well-ground the claim. See
generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996); and
Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in
this context by Epps v. Brown, 9 Vet. App. 341, 344 (1996).
In the instant case, however, the veteran has not identified
any medical evidence that has not been submitted or obtained,
which will support a well-grounded claim.
ORDER
Service connection for elevated
cholesterol/hypercholesterolemia is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals